This quarterly civil fraud update provides a summary of reported decisions handed down in the courts of England and Wales in the period of January - March 2023.

BRIBERY

In this week’s TGIF, we consider the Federal Court’s recent decision inFotios (Bankrupt) v Helios Corporation Pty Ltd (No 3) [2023] FCA 251, and earlier decisions in the same proceedings, clarifying the current Australian position as to priorities between creditors of successive trustees.

Key takeaways

High Court's Landmark Decisions Clarify the Position for Creditors and Liquidators in Insolvency Proceedings

The Law Amending the Enforcement and Bankruptcy Law and Certain Laws ("Amendment Law"), known as the 7^th Judicial Package, was published in the Official Gazette (32154) dated 05 April 2023 and entered into force except for several provisions with later effective dates.

The Amendment Law sets out several changes in the fields of enforcement law, criminal law, and procedural law, and it expands the scope of mandatory mediation significantly. Some of the prominent amendments introduced by the Amendment Law are examined below:

Originally published in the March 2023 issue of the Australian Restructuring & Turnaround Association Journal (ARITA), this article explores the interaction of statutory set‑off and unfair preference claims through its legislative origins, historical application and consideration by the courts, before discussing the High Court’s recent judgment and concluding with key takeaways for insolve

On 28 September 2022, the Parliamentary Joint Committee on Corporate and Financial Services (“Committee”) began an inquiry into corporate insolvency in Australia, the first of its kind in over 30 years. The Committee invited submissions from interested persons and stakeholders to provide recommendations on how best to improve Australia’s corporate insolvency framework. Submissions have now closed, with contributions from over 50 industry bodies, government bodies and various representative bodies and groups.

In In re Schubert, the Sixth Circuit affirmed the bankruptcy court’s dismissal of an adversary proceeding because the appellants had failed the “person-aggrieved” test for bankruptcy appellate standing. Had they challenged this standard’s existence, two of the three judges likely would have “abrogate[d]” it; the third would have salvaged it. This decision’s dicta represents perhaps the first outright rejection of bankruptcy’s appellate standing touchstone based on the Supreme Court’s analysis in Lexmark International Inc. v. Static Control Components, Inc., 572 U.S.

Navigating cross-border bankruptcy: Gilbert + Tobin has assisted in the recognition of foreign bankruptcy proceedings in Australia, acting for the trustees in bankruptcy in a successful application to recognise Singaporean bankruptcy proceedings.

Background

Boy Scouts of American achieved a confirmed plan of reorganization in its bankruptcy.

That confirmation is now affirmed on appeal by the U.S. District Court in Delaware[fn. 1]—and is heading to the Third Circuit Court of Appeals for further review.

The District Court’s affirming opinion is 155 pages long and highly detailed. This article tries to summarizes the opinion’s highlights—attempting to make the complex clear.

100% Payment Plan

The core of the opinion, around which most everything else revolves, is this:

The focus is on the CTA with a double sided trust arrangement, which has become the market standard for insolvency protection of the relevant payment claims of the individual employee by way of a CTA solution at the latest since the judgements of the Federal Labour Court (Bundesarbeitsgericht, BAG) of 18 July 2013 (6 AZR 47/12) and 22 September 2020 (3 AZR 303/18, CTA rulings).